Looking Back at Nehru’s Apology as Supreme Court Faces a No Holds Barred Attack From Dhankhar 

On May 24, 1949, participating in the discussion in the Constituent Assembly on the article dealing with the Supreme Court of India, Prime Minister Jawaharlal Nehru said, "It  is important that these judges (of Supreme Court) should be not only first-rate, but should be acknowledged to be first-rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way." 

Seventy six years after those words were uttered by Nehru, the Supreme Court is facing a no holds barred attack from none other than the vice president of India and Rajya Sabha chairman, Jagdeep Dhankhar, who has derisively called the Supreme Court "the super legislature". 

He went on to add that India was never meant to have a democracy where judges would function as lawmakers and discharge the duties of the executive. He made those uncalled for scathing remarks after the two  judge bench of the  Supreme Court declared that President of India Droupadi Murmu's decisions, on bills sent by Tamil Nadu governor R.N. Ravi after those were passed by that state's legislature for the second time, as null and void. 

Besides, the apex court directed the President to act within a period of three months on bills sent by governors for consideration. Dhankhar outrageously described those remarks of the top court as a “worrying development”. He did not spare the Supreme Court as it exercised its extraordinary power  under Article 142 of the Constitution for declaring the actions of governor of Tamil Nadu and President of India as unconstitutional and rendering justice to Tamil Nadu government by pronouncing that the bills were deemed to have received assent from the governor.

Also read: The Wire Wrap | Dhankhar Denounces Judiciary, ED Chargesheets Gandhis

He said that Article 142 is a nuclear missile and that the Supreme Court has employed it against democratic forces. As the chairman of Rajya Sabha, Dhankhar is duty bound to remain neutral with regards to the functioning of executive, judiciary and other organs of the state. His blatantly injudicious  remarks have shocked the collective conscience of the nation and are constitutionally abominable, to say the least.

Earlier in October 2024, Dhankar had very defiantly questioned the basic structure doctrine of the Constitution formulated by the 13-judge bench of the Supreme Court in its historic Kesavanand Bharati case in 1973. 

The top court had then ruled that Parliament’s power to amend the constitution cannot be extended to alter its basic structure which is inviolable. In questioning the well-settled judicially pronounced basic structure doctrine, Dhankhar was implying the supremacy of the parliament over judiciary. It is against that backdrop that Dhankhar’s current fulminations against the apex court  is an unmistakable affirmation of his resolve not to function as per the oath he has taken to abide by the Constitution. 

Apart from Dhankar, elected to the office of the vice president with BJP support, two BJP MPs -= Nishikant Dubey and Dinesh Sharma – have also made disdainful remarks against the Supreme Court and Chief Justice of India Sanjiv Khanna. Dubey preposterously charged that CJI is responsible for "all civil wars in the country" and that parliament should be shut down because the Supreme Court is replacing it to make laws. 

Sharma, in response to the court’s indictment of President Droupadi Murmu in the Tamil Nadu governor case asserted that the President is supreme and so remains beyond any challenge. It appears that both MPs were finding it difficult to accept the Supreme Court’s stand that certain aspects of the Waqf Act might be put on hold to ascertain their constitutional validity.  

Also read: Dhankhar’s Disgrace: When the Vice-President Becomes a Partisan Attack Dog, Democracy Bleeds

BJP president J.P. Nadda did not act against the two MPs and only said that the views they expressed are their personal views.   

Meanwhile, a recent editorial in The Indian Express, observed that in the context of malignantly damaging remarks of two BJP MPs and Vice President Dhankhar, “the BJP seems beset with a troubling contagion”. 

The “troubling contagion” of BJP is poisoning the whole body polity and aims at striking a fatal blow on the apex judiciary which safeguards the life and liberty of people and the constitution. Such wilful affront to the Supreme Court has no parallel in our constitutional democracy. 

In this context, Nehru’s inappropriate remarks against retired judge of the Supreme Court, Justice Vivian Bose in 1959, and the apology he tendered to Bose assumes contemporary significance. That case was about the infamous Mundhra scam. In 1957, LIC invested over a crore rupees in entities owned by businessman Haridas Mundhra. In response to several allegations raised against that investment, the chief justice of Bombay high court was entrusted with the responsibility to investigate the scam. After he submitted the report, the then finance minister T.T. Krishnamachari resigned.

Later, a board of enquiry, headed by retired judge of Supreme Court Vivian Bose investigated charges against some officers and in his report, he observed that LIC’s investment in Mundhra’s entities could be made possible after Mundhra donated funds to the tune of Rs 1.50 lakh to Congress party in Uttar Pradesh and another and Rs 1 lakh to the all-India Congress party. 

Nehru, in response to a question from a journalist on the funds the Congress received, stated, “If you believe that for this 2 and a half lakhs from Mundhra, the deal has been put through, the person who suggests it is lacking in intelligence, even if he is a high court judge.” 

When the Calcutta bar association expressed outrage at that remark of Nehru, he tendered apology to Bose  by admitting that what he said was improper and he did so by the barrage of questions which caught him unawares. 

Justice Bose graciously wrote back to Nehru that he  did not take those remarks seriously and so never got upset on that account.  He regretted that what he said on the scam caused so much public controversy. 

The example set by Nehru finds more resonance at a time when BJP MPs and vice president Dhankhar have crossed all limits to attack the apex court and avoiding to tender an apology.

Nehru's articulation in the Constituent Assembly in 1949 that India should have judges in the apex judiciary who should, among others, "stand up against the executive government, and whoever may come in their way" are persuasive enough for judges of the Supreme Court for upholding the constitution and constitutional morality. 

S.N. Sahu served as officer on special duty to President of India K.R. Narayanan.

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